Saturday, March 09, 2013

9th Circuit Gets One Right

In a somewhat surprising 9th Circuit ruling (en banc, or in front of the entire set of judges), the court ruled that the 4th Amendment does apply at the border,
that agents do need to recognize there's an expectation of privacy, and
cannot do a search without reason. Furthermore, they noted that merely
encrypting a file with a password is not enough to trigger suspicion. This is a huge ruling in favor of privacy rights.

The ruling is pretty careful to strike the right balance on the issues. It notes that a cursory review at the border is reasonable:

Officer Alvarado turned on the devices and opened
and viewed image files while the Cottermans waited to enter
the country. It was, in principle, akin to the search in Seljan,
where we concluded that a suspicionless cursory scan of a
package in international transit was not unreasonable.

But going deeper raises more questions. Looking stuff over, no problem.
Performing a forensic analysis? That goes too far and triggers the
4th Amendment. They note that the location of the search is meaningless
to this analysis (the actual search happened 170 miles inside the
country after the laptop was sent by border agents to somewhere else for
analysis). So it's still a border search, but that border search
requires a 4th Amendment analysis, according to the court.